18. In Rex v. Taylor (1676); quoted in Russell Sandberg and Norman Doe, “The Strange Death of Blasphemy,” The Modern Law Review 71, no. 6 (2008): 972; R v. Ramsay & Foote and R v. Bradlaugh (1883), quoted in Robert Post, “Hate Speech,” 127; see also Sandberg and Doe, “Strange Death,” 973.
19. Venice Commission 2008, Analysis of the Domestic Law Concerning Blasphemy, Religious Insult and Inciting Religious Hatred in Albania, Austria, Belgium, Denmark, France, Greece Ireland, Netherlands, Poland, Romania, Turkey, United Kingdom, Study no. 406/2006, October 10, 2008, 10–11, http://www.venice.coe.int/docs/2008/CDL-AD(2008)026add2-bil.pdf. This document is Annexe II to draft report CDL(2008)090 (http://www.venice.coe.int/docs/2008/CDL(2008)090-e.pdf), and will henceforth be cited as Annexe II.
20. As of 2008, the law had not been used on behalf of religions other than the Greek Orthodox Church, although it specifically permits such use; see Venice Commission 2008, Annexe II, 46–47.
21. Venice Commission 2008, Annexe II, 8, 30; ARTICLE 19 and INTERIGHTS, Blasphemy and Film Censorship—Submission to the European Court of Human Rights in Respect of Nigel Wingrove v. the United Kingdom, December 1995, p. 6, http://www.article19.org/pdfs/cases/uk-wingrove-v.-uk.pdf; Decision on Possible Criminal Proceedings in the Case of JyllandsPosten’s Article “The Face of Muhammad,” The Director of Public Prosecutions (Denmark), File No. RA-2006-41-0151, March 15, 2006, http://www.rigsadvokaten.dk/media/bilag/afgorelse_engelsk.pdf.
22. David Rising, “MTV ‘Popetown’ Ad Draws Complaint,” Associated Press (AP), April 25, 2006, http://www.highbeam.com/doc/1P1-122498671.html. In Germany, various cases of anti-Christian blasphemy have been dismissed by the courts. Between 1985 and 1995, two cases were rejected in Italy; see Blasphemy and Film Censorship, 8; “Blasphemy: European Laws and Cases,” Caslon Analytics, August 2008, http://www.caslon.com.au/blasphemyprofile6.htm#italy. In October 1997, the Catholic Archbishop of Melbourne, Australia, arguing that Andres Serrano’s art constituted blasphemous libel, sought an injunction against it but was turned down on a technicality, leaving the validity of the blasphemy law unclear. However, the presiding justice opined that, as a modern pluralist society, “Australia need not bother with blasphemous libel”; see Kate Gilchrist, “God Does Not Live in Victoria,” Art Monthly, December 1997, http://www.artslaw.com.au/publications/Articles/97Blasphemy.asp; for more on Australian blasphemy cases, see Caslon Analytics, http://www.caslon.com.au/blasphemyprofile5.htm.
23. “Italy Gags ‘Porno’ Virgin Mary Sites,” BBC News, July 10, 2002, http://news.bbc.co.uk/2/hi/europe/2119780.stm; “Website’s Pope Pictures Offend Catholics,” Guardian Unlimited, April 29, 2005, http://www.theage.com.au/news/Breaking/Website-shows-Pope-theNazi/2005/05/05/1115092599914.html; Richard Owen, “Comedian Sabina Guzzanti ‘Insulted Pope’ in ‘Poofter Devils’ Gag,” The Times, September 12, 2008, http://www.time-sonline.co.uk/tol/news/world/europe/article4732048.ece.
24. Venice Commission 2008, Annexe II, 48.
25. Krysia Diver, “Cartoonist Faces Greek Jail for Blasphemy,” The Guardian, March 23, 2005, http://www.guardian.co.uk/world/2005/mar/23/austria.arts; Miron Varouhakis, “Greek Court Clears Austrian Cartoonist of Blasphemy,” AP, April 13, 2005, http://www.encyclopedia.com/doc/1P1-107349748.html; “Greek ‘Obscene Art’ Trial Delayed,” BBC News, June 3, 2005, http://news.bbc.co.uk/2/hi/europe/4606533.stm; Elinda Labropoulou, “Curator on Trial for ‘Obscene’ Art,” The Independent, June 4, 2005, http://www.independent.co.uk/news/world/europe/curator-on-trial-for-obscene-art-492973.html.
26. The Council of Europe, based in Strasbourg, has forty-seven member countries. Founded on May 5, 1949, by ten countries, it seeks to develop throughout Europe common and democratic principles based on the European Convention on Human Rights and other reference texts on the protection of individuals; see http://www.coe.int/aboutCoe/index.asp?page=quisommesnous&l=en.
27. Dirk Voorhoof, “European Court of Human Rights—Case of Tatlav v. Turkey,” IRIS 7, article 2 (2006): 3, http://merlin.obs.coe.int/iris/2006/7/article2.en.html.
28. Convention for the Protection of Human Rights and Fundamental Freedoms, available via Council of Europe at http://conventions.coe.int/Treaty/en/Treaties/Html/005.htm.
29. In 1982, the European Court of Human Rights, which decides which cases will be heard by the Court of Human Rights, rejected an appeal from the publication Gay News and its editor Denis Lemon, who had received Britain’s first blasphemy conviction in over half a century after publishing a poem that depicted Christ as a homosexual; see Whitehouse v Lemon (1979) 2 WLR 281. The European Court similarly found that “the rights of others” justified the suppression of blasphemy in the 1994 case Otto-Preminger Institut v. Austria, which upheld Austria’s seizure of a film, Das Liebeskonzil (“Council in Heaven”), depicting God, Christ, and the Virgin Mary in a mocking and derogatory fashion. In Wingrove v. UK (1996), the European Court endorsed the government’s decision to uphold the banning of a film on blasphemy grounds; see Application No. 8710/79, X. Ltd. and Y v/United Kingdom, European Commission of Human Rights, May 7, 1982, http://www.menschenrechte.ac.at/orig/95_2/Wingrove.pdf. In another case concerning a pornographic film, Visions, that purportedly depicted the visions of sixteenth-century St. Teresa of Avila, the court again asserted “the right of citizens not to be insulted in their religious feelings.”
30. Ian Cram, “The Danish Cartoons, Offensive Expression, and Democratic Legitimacy,” in Extreme Speech and Democracy, 319; Monica Macovei, “Freedom of Expression: A Guide to the Implementation of Article 10 of the European Convention on Human Rights,” Council of Europe Human Rights Handbook No. 2, pp. 54–55, http://www.coe.int/t/dghl/publications/hrhandbooks/index_handbooks_en.asp,; this summary also contains lengthy excerpts from the original court ruling.
31. Wingrove v. the United Kingdom—Chamber Judgment, European Court of Human Rights, October 22, 1996, http://www.strasbourgconsortium.org/document.php?DocumentID=370.
32. Ibid.
33. Dirk Voorhoof, “Case of I.A. v. Turkey,” IRIS 10, article 3 (2005): 3, http://merlin.obs.coe.int/iris/2005/10/article3.en.html. A three-judge minority argued that the European Court should “reconsider” its holdings in Wingrove and Otto Preminger on the grounds that the resulting jurisprudence gave too much support to conformist speech and the pensée unique.
34. Nash, Blasphemy in the Christian World, 17, 181.
35. “Not Dead, Just Sleeping: Canada’s Prohibition on Blasphemous Libel as a Case Study in Obsolete Legislation,” University of British Columbia Law Review 141 (April 17, 2008): 193, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1121932.
36. “Bid to Prosecute Rushdie Is Rejected,” New York Times, April 10, 1990, http://www.nytimes.com/1990/04/10/books/bid-to-prosecute-rushdie-is-rejected.html?pagewanted=1.
37. Whitehouse v. Lemon [1979], quoted in Nash, Blasphemy in the Christian World, 5.
38. Regina v. Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury [1990] 3 W.L.R. 986, Queen’s Bench Division, effective April 9, 1990, http://www.religlaw.org/template.php?id=2494.
39. As quoted in Wingrove v. UK (European Court of Human Rights, 1996), http://www.strasbourgconsortium.org/document.php?DocumentID=370.
40. Nash, Blasphemy in the Christian World, 88–92.
41. The UN Human Rights Committee in November 1996 upheld France’s Holocaust denial law on the grounds that it “served the respect of the Jewish community to live free from fear of an atmosphere of anti-Semitism” (Communication No. 550/1993, UN Human Rights Committee, adopted November 8, 1996, CCPR/C/58/D/550/1993, December 16, 1996), http://www1.umn.edu/humanrts/undocs/html/VWS55058.htm. Governments in the past two decades have made active use of such laws. The British Holocaust denier David Irving was fined approximately $6,000 by a German court in 1992, and in 2006, he was sentenced to a three-year jail term in Austria; see Veronika Oleksyn, “Holocaust Denier Gets Three Years in Jail,” AP, February 20, 2006. See also http://www.vosizneias.com/50997/2010/03/10/budapest
-hungary-holocaust-deniers-face-3-years-jail-under-new-law; “Irving Expands on Holocaust Views,” BBC News, February 28, 2006, http://news.bbc.co.uk/2/hi/europe/4757506.stm. In February 2007, Ernst Zundel was convicted of inciting hatred against Jews and sentenced to five years’ imprisonment for activities including his contributions to a Holocaust-denying Web site; see Thomas Seythal, “Holocaust Denier Sentenced to 5 Years,” AP, February 15, 2007, http://www.encyclopedia.com/doc/1Y1-103301044.html. French laws of this kind were used to charge eminent Princeton historian Bernard Lewis, after a 1993 interview with Le Monde, in which Lewis had questioned whether the massacres of Armenians during World War I, which he said did occur, were the result of a deliberate genocidal plan by Ottoman authorities. Although three cases were dismissed, one civil suit resulted in his being condemned and fined for not being “objective,” since the European parliament had classified the massacres as genocide; see Gerard Alexander, “Illiberal Europe,” Weekly Standard, April 10, 2006, http://www.weeklystandard.com/Content/Public/Articles/000/000/012/055sbhvq.asp.
42. Council of Europe, Recommendation No. R 97(20) of the Committee of Ministers to Member States on “Hate Speech,” October 30, 1997.
43. Council of Europe, Additional Protocol to the Convention on Cybercrime, Concerning the Criminalisation of Acts of a Racist and Xenophobic Nature Committed Through Computer Systems, Strasbourg, January 28, 2003, http://conventions.coe.int/treaty/en/Treaties/Html/189.htm.
44. American Convention on Human Rights, http://www.oas.org/juridico/English/treaties/b-32.html; Joanna Oyediran, “Article 13(5) of the American Convention on Human Rights,” in Striking a Balance: Hate Speech, Freedom of Expression and Non-discrimination, ed. Sandra Coliver (Colchester, U.K.: University of Essex Human Rights Centre,1992)), 33–34. The U.S. has signed but not ratified this treaty.
45. Ian Black, “EU Agrees New Race Hatred Law,” The Guardian, April 20, 2007, http://www.guardian.co.uk/eu/story/0,,2061767,00.html; Council of the European Union, “Council Framework Decision on Combating Racism and Xenophobia,” 2794th Council meeting, Justice and Home Affairs press release, Luxembourg, 19–20 April 2007, http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/jha/93741.pdf.
46. Ingrid Melander, “Britain Limits EU Religious Hatred Ban,” Reuters, April 17, 2007; Council of the European Union, Council Framework Decision 2008/913/JHA of November 28, 2008 on Combating Certain Forms and Expressions of Racism and Xenophobia by Means of Criminal Law, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32008F0913:EN:NOT.
47. Council of the European Union, Framework Decision on Combating Certain Forms of Expression of Racism and Xenophobia. See also “Framework Decision on Combating Racism and Xenophobia,” Europa, http://europa.eu/legislation_summaries/justice_freedom_security/combating_discrimination/l33178_en.htm; Council of the European Union, “ ‘A’ Item Note,” from Permanent Representatives Committee to Council, re: Proposal for a Council Framework Decision on Combating Certain Forms and Expressions of Racism and Xenophobia by Means of Criminal Law, November 26, 2008, http://register.consilium.europa.eu/pdf/en/08/st16/st16351-re01.en08.pdf; and Tarlach McGonagle, “Council of the European Union: Framework Decision on Racism Adopted,” IRIS 2, article 5 (2009): 6, http://merlin.obs.coe.int/iris/2009/2/article5.en.html.
48. Eric Heinze, “Wild-West Cowboys Versus Cheese-Eating Surrender Monkeys,” in Extreme Speech and Democracy, 184.
49. Venice Commission 2008, Annexe II, 9.
50. Parkinson, “Religious Vilification, Anti-Discrimination Laws and Religious Minorities in Australia,” 5.
51. The Venice Commission is charged with upholding Europe’s constitutional heritage of democracy, human rights, and the rule of law. Its roster of experts is appointed to four-year terms and acts in their personal capacity. (H. Knox Thames, Chris Seiple, and Amy Rowe, eds., International Religious Freedom Advocacy, 70.) See Report on the Relationship Between Freedom of Expression and Freedom of Religion: The Issue of Regulation and Prosecution of Blasphemy, Religious Insult and Incitement to Religious Hatred, Adopted by the Venice Commission at its 76th Plenary Session (Venice, 17–18 October 2008) on the basis of comments by Mr. Louis-Léon Christians, Mr. Pieter van Dijk, Ms. Finola Flanagan, and Ms. Hanna Suchocka, Strasbourg, October 23, 2008, http://www.venice.coe.int/docs/2008/CDL-AD(2008)026-e.pdf, henceforth cited as Venice Commission 2008, Report. On incitement clauses considered for inclusion in the declaration, see Kevin Boyle, “Religious Intolerance and the Incitement of Hatred,” in Striking a Balance, 64–65; the resulting distinction between the declaration and the CERD is also emphasized by the UN Special Rapporteur on Freedom of Religion or Belief, who thus cautions against an unthinking application of CERD Article 4 to religious matters; see “Special Rapporteur on Freedom of Religion or Belief—Framework for Communications,” Office of the UN High Commissioner for Human Rights, http://www2.ohchr.org/english/issues/religion/IV1.htm. Other states in the OSCE survey had legislation that could easily be interpreted to cover religious groups; for instance, Canada’s hate-speech laws cover “any identifiable group,” and Germany’s refer to “segments of the population.”
52. In the United States, the content of speech can be restricted only in narrow circumstances. These include: cases of personal defamation and libel, laws that punish false statements of fact that harm individual persons, not the peaceful criticism of ideas; cases in which, as the Supreme Court ruled in Brandenburg v. Ohio, the “advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (a much vaguer and attenuated standard was adopted by the UN’s International Covenant on Civil and Political Rights, Article 20(2), which obliges states to prohibit by law “[a]ny advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility or violence”); cases of “true” threats, and intimidation, in which “the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals”; cases of “fighting words,” which are limited to face-to-face insults that are likely to arouse an immediate violent response (and even here the Supreme Court has further narrowed the exception by finding statutes criminalizing such words overbroad and vague, or including impermissible content-based restrictions); cases satisfying “strict scrutiny,” meaning the restriction is narrowly tailored to serve a compelling government interest, and no less restrictive alternative would be as effective (e.g., grand jury secrecy, or falsely shouting “fire” in a crowded theater); and cases of harassment, as prohibited in most states by statutes covering in various forms: (1) repetitious annoyances; (2) threats specifically conveyed, orally, electronically, or by telephone or mail; or (3) conduct likely to stimulate an immediate violent response. The Supreme Court has never squarely addressed whether harassment, when it takes the form of pure speech, is exempt from First Amendment protection. Boyle, “Overview,” in Striking a Balance, 4. See also James Weinstein, “An Overview of American Free Speech Doctrine and its Application to Extreme Speech,” in Extreme Speech and Democracy, 81; in the same volume, Eric Heinze, in “Wild-West Cowboys versus Cheese-Eating Surrender Monkeys” (pp. 182–203), challenges the U.S./European divide as a cultural and practical matter but acknowledges it is a legal reality.
53. Brandenburg v. Ohio, 395 U.S. 444 (1969), http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=395&invol=444.
54. In the case National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977), the Supreme Court prevented a state court from banning a neo-Nazi march through a Jewish area on the basis that it unconstitutionally infringed on their First Amendment rights.
55. William J. Krouse, Hate Crime Legislation in the 109th Congress, Congressional Research Service Report RL 33403 (2009), 2. A key 1952 Supreme Court precedent is Joseph Burstyn, Inc. v. Wilson, 342 U.S. 495, 505 (1952), invalidating a NY statute banning “sacrilegious” films: “It is not the business of government in o
ur nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches, or motion pictures.” In 1970, a state appellate court overturned a conviction under Maryland’s 1860 blasphemy law, finding it violated the First Amendment’s religion clauses. (The Supreme Court found it unnecessary to reach the free speech question.) See Maryland v. West, 9 Md. App. 270 (1970). Blasphemy laws remain on the books in six states (Massachusetts, Oklahoma, Michigan, South Carolina, Wyoming, and Pennsylvania). Officials expect not to enforce them and could face legal and professional sanctions for bringing obviously untenable cases. Indeed, shortly after the Maryland decision, planned blasphemy prosecutions in neighboring Delaware and Pennsylvania were dropped. See Robert C. Post, “Cultural Heterogeneity and Law: Pornography, Blasphemy, and the First Amendment,” 76 Calif. L. Rev note 1 at 316–17, 1988. An exception to the pattern of arcane and unenforced statutes, a 1977 Pennsylvania law, enacted overwhelmingly, banned corporate names containing “words that constitute blasphemy, profane cursing or swearing or that profane the Lord’s name” (19 Pa. Code §17.5). In July 2010, a federal judge struck down the statute.
56. Jeffrey Breinholt, in “More Overlooked History: The Muslim Libel Cases,” Counterterrorism Blog, August 2, 2007, http://counterterrorismblog.org/2007/08/more_overlooked_history_the_mu.php, notes a number of such cases and the likelihood that more remain unknown to the public because the accused opted to settle out of court rather than pay the legal fees for a defense.
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